U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Celine D.,1 Complainant, v. John F. Kelly, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency. Appeal No. 0120152838 Agency No. HS-USCG-00016-2014 DECISION Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated July 20, 2015, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked at the Agency's Coast Guard Base in Alameda, California. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On January 14, 2014, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that the Agency shall: (1) By March 1, 2014 to meet and review the [Complainant's] current [Agency's] Military records with her in Alameda, California, records subject to review are limited to: a. Pay (including berthing payments) b. Medical records c. Evaluation form CG-3307, Administrative Remarks (page 7's) d. Award records e. Transfer to the Inactive Reserve (IRR) f. Compliance of a Federal Agreement signed by the Agency. (2) If a correctable error is identified, the Reviewing Official will make a recommendation to [Complainant] regarding the best manner to address the error. Should [Complainant] wish to pursue the recommended course of action, [the Agency] will provide direction to assist in preparing the documentation necessary for the correction to the appropriate [Agency] entity authorized to correct the error no later than 15 days from the date when the request for assistance is made. By letter to the Agency dated June 10, 2015, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to meet with Complainant by March 1, 2014, and the extension agreement was never signed. Complainant provided the Agency with examples of documents which need to be corrected but the Agency has taken no action. Complainant also alleged that the Agency was supposed to help Complainant prepare the necessary documentation to make any corrections. However, the Agency has not provided any assistance on how to make the corrections. Therefore, the Complainant asked that the Agency comply with the settlement agreement. In its July 20, 2015 FAD, the Agency concluded that it did not breach the settlement agreement. The Agency noted that on May 18, 2015, the Executive Officer provided a detailed summary of correspondence between Complainant and the Agency over the 16 months since the signing of the agreement in order to coordinate with her to give her a complete copy of her records and to schedule a meeting pursuant to the agreement. Complainant indicated in response that she was aware of how she could see her record but asserted that the Agency has not complied with the provisions. The Agency concluded that Complainant failed to comply with the Agency and the matter was closed. As such, the Agency held that it did not breach the settlement agreement. This appeal followed. ANALYSIS EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. The Commission has held that a settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. See Herrington v. Dep't of Def., EEOC Request No. 05960032 (December 9, 1996). The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention, that controls the contract's construction. Eggleston v. Dep't of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv., EEOC Request No. 05910787 (December 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984). The Commission finds that the instant agreement is void for lack of consideration. Generally, the adequacy or fairness of the consideration in a settlement agreement is not an issue, as long as some legal detriment is incurred as part of the bargain. However, when one of the contracting parties incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. See McNair v. U.S. Postal Serv., EEOC Appeal No. 01964653 (July 1, 1997); Juhola v. Dep't of the Army, EEOC Appeal No. 01934032 (June 30, 1994) (citing Terracina v. Dep't of Health and Human Serv., EEOC Request No. 05910888 (March 11, 1992). Here, the agreement provided Complainant the opportunity to review her personnel records which she noted she is already able to do on her own. The agreement then provided that an Agency official would recommend to her who in the Agency could address the error. In essence, the Agency would tell Complainant who to contact within the Agency. Again, we find that this does not incur a detriment on the part of the Agency. The Agency did not promise that any alleged error would be corrected. As such, we find that the terms of the agreement fail to confer on Complainant any benefit that she was not already entitled to as a matter of law. Therefore, we find that Complainant received no consideration for withdrawing her complaint and the settlement agreement is void. CONCLUSION Accordingly, the agency's decision finding it did not breach the settlement agreement is VACATED. The matter is REMANDED to the agency for further processing in accordance with this decision and the ORDER below. ORDER The Agency is ORDERED to resume processing of Complainant's underlying complaint from the point where processing ceased. The Agency shall acknowledge to Complainant that it has reinstated and resumed processing of her underlying EEO complaint. A copy of the agency's letter of acknowledgment must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations May 4, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152838 5 0120152838